Could do better... Must do better A study of family and friends care local authority policies

Transcription

1 Could do better... Must do better A study of family and friends care local authority policies Local authority report card Published a policy Consulted with local carers Financial information Support groups Sources of legal advice Help with housing Information about universal services Mercer A, Lindley B, Hopkins A, Edited by Ashley C

2 Could do better Must do better: A study of family and friends care local authority policies Contents Key findings... 4 Key recommendations... 5 Chapter 1 Introduction Context Who are family and friends carers? What research tells us Aims of the study Methodology Acknowledgements... 8 Chapter 2 Legal Context Introduction Local authority duties to promote family and friends care for children who cannot live at home Requirements and expectations of the statutory guidance on family and friends care Legal options for family and friends care arrangements Chapter 3 Family and friends care policies current state of play Chapter 4 Local family and friends care policies: analysis Policies selected for analysis Consultation and needs assessment Values and principles Evidence base Management accountability Chapter 5 Information about legal status and related support: analysis of local policies Different legal arrangements Information about support services Information about sources of independent advice Chapter 6 Financial advice: analysis of local policies

3 6.1 Financial support for family and friends carers: analysis of local policies Children in need (Section 17) payments Fostering allowances Special guardianship and residence order allowances Legal fees Chapter 7 Other support for family and friends carers: analysis of local policies Housing Supporting contact Family Group Conferences Support groups Specialist support services Support for family and friends foster carers Complaints Accessibility and relevance Chapter 8 Local authority policy development check list The following is an easy to use checklist which we ve drawn up, in order to assist local authorities to develop and improve their policies. We have based the checklist upon statutory guidance and identified subsequent best practice Appendix A: The legal framework for decision making and support for children in family and friends Private arrangements What is a private arrangement and what are the implications? Financial support for private arrangements Support for young people in further and higher education Practical and emotional support What about children who are placed with family and friends carers by the social worker but are then treated as though they are in a private arrangement? Child arrangements orders (saying who the child should live with) What is a child arrangements order? What are the implications of having a child arrangements order (saying who the child should live with)? Child arrangements orders and support Child Arrangement Orders: Support for children in school : Children Arrangements Orders: Further and Higher Education Special guardianship orders What are the implications of having a special guardianship order? Special guardianship orders and support

4 3.3 Special Guardianship: Support for children in school Special Guardianship: Further and higher education Children who are looked after by the local authority and placed with family or friends: Who is a looked after child? Priorities for deciding where a looked after child should be placed Emergency placements with family and friends carers Decisions and plans for looked after children Support for looked after children Support for looked after children in school Looked after children: further and higher education

5 Key findings 126 (83%) of English local authorities have a published family and friends policy 26 (17%) of local authorities do not have a published a policy setting out their approach towards promoting and supporting the needs of children living with family and friends carers, thus failed to comply with statutory guidance which requires them to have a published policy by September A further 7 policies were primarily about friends and family foster care, with very little focus on services to the other 95% of friends and family carers. Of those that have published a policy, most have not used local demographic and needs data to underpin the policy and most have not involved collaboration with local partner agencies. One third of the policies analysed made no reference to a senior manager with responsibility for implementation and ensuring that staff and partner agencies understood their responsibilities in relation to family and friends carers. Only 13% of policies analysed indicated that the authority has a dedicated worker or team to support friends and family carers. Of these only two indicated that this is available to all friends and family carers, rather than just foster carers. More than half of the policies analysed did not provide information about universal services available to family and friends carers and the children they are raising. Although there have been some improvements since 2012, it is clear that local authorities are still failing to comply fully with the statutory guidance, to the detriment of children in family and friends care. 4

6 Key recommendations Local authorities who have not yet complied with the statutory guidance should publish a family and friends care policy as soon as possible Local authorities should collate and analyse local data on children in family and friends carer and use this data to inform their policies. Local authorities who have published a family and friends care policy should review it to ensure that it covers all the issues in the statutory guidance and provides the information needed by all family and friends carers, not just those who are connected persons foster carers The Government should now regulate to require local authorities to publish a family and friends care policy to maximise the identification of and support for children raised by family and friends carers and place a new duty on local authorities to establish and commission family and friends care support services. Ofsted inspections of children s services departments should specifically ensure that this duty is complied with and Ofsted should conduct a thematic family and friends care review. The Local Government Association should also be encouraged to provide a family and friends care peer review and support network for local authorities There should be a new legal duty on local authorities to ensure that potential placements with family and friends carers are always explored and assessed for suitability including offering all families the opportunity to have a family group conference before a child enters the care system (unless there is an emergency). The Government should adequately fund free specialist independent legal advice and information services to family and friends who are considering, or have taken on a child, including sibling carers, not least so they can navigate a field of complex child welfare law and variable local policy and practice, in order to make informed decisions. 5

7 Chapter 1 Introduction 1.1 Context In 2012 the Government introduced statutory guidance 1 for local authorities on family and friends care. The statutory guidance sets out the requirement for a local authority to publish a family and friends care policy. In collaboration with local partners, each local authority with responsibility for children s services must, no later than 30 September 2011, publish a policy setting out its approach towards promoting and supporting the needs of children living with family and friends carers. The policy must address the needs of children in family and friends care, whether or not they are looked after children, and should be clearly expressed, regularly updated, made freely and widely available and publicised by relevant means, such as websites and leaflets. 2 The guidance also included detailed guidelines on what the policy should address and the need for a senior manager in each authority to have overall responsibility for the family and friends care policy. Chapter 2 of the report sets out in more detail what the guidance covers. The statutory guidance makes clear that children and young people who are unable to live with their parents should receive the support that they and their carers need to safeguard and promote their welfare, whether or not they are looked after 3. The reality of the current financial climate is that local authorities are having to make cuts, particularly to discretionary services, whilst thresholds to access specialist service are being raised. Meanwhile many family and friends care households, who had to give up work to care for the children and became reliant on benefits, are finding life particularly tough. In such an environment, it is even more imperative that local authorities work in partnership with family and friends carers to deliver the best outcomes for children, make it easy for family and friends carers to access the help that is available and ensure that children do not have to become taken into care in order to receive support. 1 DfE (2011) Statutory Guidance for Local Authorities on Family and Friends Care paragraph 1.2.This guidance is issued under s.7 Local Authority social Services Act 1970 which means that the local authority must comply with it unless there are exceptional local circumstances to justify not following it. 2 DfE (2011) Statutory Guidance for Local Authorities on Family and Friends Care paragraph Looked after children are those who are in the care of the local authority under a Emergency Protection or Care Order, or who are accommodated by the local authority under Section 20 Children Act

8 1.2 Who are family and friends carers? A family and friends carer is a relative, such as a grandparent, aunt, uncle or older sibling, or a friend who is raising a child who is unable to live with their parents. They are also sometimes known as kinship carers. There are estimated to be around 200,000 children being raised by family and friends carers. Children may be living with the family and friends carer for a range of reasons, including parental death, imprisonment, divorce, mental and/or physical ill health, alcohol and/or drug misuse, learning disability; a breakdown in relationships between child and parent; and child abuse. 1.3 What research tells us Many more children who cannot live with their parents are brought up by relatives or family friends than are adopted or are in foster care. Research and case law evidence is that the option of children being raised by members of their wider family or friendship network is too often dismissed or overlooked until late into court proceedings 4. Research evidence tells us that: Children in family and friends care have suffered similar adverse experiences in the past as those living with unrelated carers in the care system 5. Many family and friends carers end up in severe financial hardship as a result of raising a child in their family 6. Nearly half have to leave their job or cut their hours 7 when the child comes to live with them. A high proportion of family and friends carers have limiting physical conditions or disabilities and often their own relationships come under severe strain. The children and their family and friends carers often receive little or no support, with those getting the least support from local authorities being the ones who are bringing up the children with the highest levels of emotional and behavioural difficulties. The main determinant of access to support is the child s legal status, in particular whether the child is in or out of the care system, rather than their needs 8. Despite this, most children in family and friends care are thriving, and doing significantly better than children in unrelated care 9 in particular they feel more secure and have fewer emotional and behavioural problems and are also doing better academically. 4 Farmer, E and Moyers, S (2008) Kinship Care: Fostering Effective Family and Friends Placements (Jessica Kingsley Press) and A and B versus Rotherham 2014 (EWFC47) 5 Farmer, E and Moyers, S (2008) Kinship Care: Fostering Effective Family and Friends Placements (Jessica Kingsley Press) 6 Hunt J and Waterhouse S (2012) Understanding family and friends care: the relationship between need, support and legal status (University of Oxford & FRG 7 Ashley C (ed) Aziz R, Roth D and Lindley B (2012) Understanding family and friends care: the largest survey (Family Rights Group) 8 Hunt & Waterhouse (2013) It s Just Not Fair! Support, need and legal status in family and friends care (Family Rights Group) 9 Selwyn et al (2013) The Poor Relations? Children & Informal Kinship Cares Speak Out (University of Bristol) 7

9 1.4 Aims of the study In 2012 Family Rights Group published a report analysing the extent to which local authorities were complying with the family and friends care statutory guidance 10. It found that 45% of local authorities had not published a family and friends care policy and a significant number of policies did not adequately cover all of the requirements of the guidance. This follow up study examines whether local authorities are complying with the statutory guidance. 1.5 Methodology In the research for the 2012 study we sent a freedom of information request to all English local authorities, asking them to provide us a link to their family and friends care policy. We published the links on Family Rights Group s website. In 2014, Edward Timpson MP, the Parliamentary Under Secretary of State for Children and Families, wrote to all English local authorities with responsibility for children and families services reminding them of their duty to have a published friends and family care policy. We liaised with the Department for Education who shared the links to family and friends care policies provided to them by local authorities. We also searched the local authorities own websites to access the most up to date policies available. We have updated our website to reflect the latest information 11. We then undertook a detailed analysis of a sample of policies, to consider whether they complied with the statutory guidance. 1.6 Acknowledgements Our grateful thanks to the Esmee Fairbairn Foundation who generously funded this study. Thanks also to members of the Kinship Care Alliance for their contribution to the project and to the Department for Education for their co-operation. We are grateful to the many officers within local government who responded promptly to our request for information, to those who have produced excellent policies and those who are striving to do so. We also pay tribute to family and friends carers across England raising children, often in very difficult circumstances, who deserve recognition and support. 10 Roth D, Aziz R and Lindley B, Edited by Ashley C (2012) Understanding family and friends care: local authority policies the good, the bad and the non existent (FRG)

10 Chapter 2 Legal Context 2.1 Introduction As stated in chapter 1, the government issued statutory guidance to local authorities on family and friends care 12 in April This guidance requires every English local authority to have a policy, by 30 th September 2011, setting out the support they will provide to such carers. This chapter sets out the legal framework in England for promoting and supporting family and friends care. Typically, relatives and friends who step in to care for children who cannot remain at home with their parents have two key needs: i) the need to be able to make decisions about how the child in their care is raised; and frequently, ii) the need to have financial and other support to care for them. Research has confirmed that financial and practical support is often determined by the legal status rather than the needs of the child. 13 This is in the main because when children are looked after local authorities must support them and when they are not, local authority support is at the council s discretion. However, the statutory guidance says that... No child or young person should have to become looked after for the sole purpose of enabling financial, practical or other support to be provided to the child s carer. 14. The guidance sets out how local authorities can support children being raised by family and friends carer who are not looked after, as well as those who are. We have set out below the duties on the local authorities to promote family and friends care for children unable to remain with their parents and the expectations of the statutory guidance in terms of support to be provided Local authority duties to promote family and friends care for children who cannot live at home 12 DFE, Statutory Guidance on Family and Friends Care (2011), df. 13 Hunt & Waterhouse 2013 ibid 14 DfE (2011) Ibid paragraph

11 Pre-proceedings statutory guidance (2014) 15 says It is important wider family are identified and involved as early as possible in supporting the child and helping parents address identified problems. If problems escalate & children can t remain safely with parents, local authorities should seek to place children with suitable wider family members where it is safe to do so 16. Enabling wider family members to contribute to decision-making where there are child protection or welfare concerns, including when the child can t remain safely with birth parents, is an important part of pre-proceedings planning. 17 Potential family and friends carers, should therefore always be fully explored before any application is made for an emergency protection, care or supervision order. The same guidance encourages the use of family group conferences 18 in this context: FGCs are an important means of involving the family early so that they can provide support to enable the child to remain at home or look at alternative permanence options. 19 Local authorities should consider referring the family to an FGC if they believe there is a possibility the child may not be able to remain with their parents, or in any event before a child becomes looked after unless this would be a risk to the child. 20 The use of FGCs ensures that wider family members understand at an early stage the seriousness of the situation & have the opportunity to make contingency plans for alternative care within the family if the parents do not satisfactorily resolve their problems within the child s timescale. 21 There are certain placement duties on the local authority when the child is looked after i.e. when a child is subject to an emergency protection or care order or is voluntary accommodated under Section 20 Children Act These duties require the local authority to place with a suitable parent, and where there is none, they should (unless they are considering adoption) give preference to a family and friends 15 DfE Court orders and pre-proceedings for local authorities (2014) ance_on_court_orders_and_pre-proceedings.pdf 16 DfE (2014) Ibid paragraph DfE (2014) Ibid paragraph Family group conferences are an approach in which the young person and their wider family are supported to take the lead in making a plan at a meeting which addresses local authority concerns about a child. To read more go to 19 DfE (2014) ibid paragraph DfE (2014) ibid paragraph DfE (2014 ibid page 16 10

12 carers or connected persons who are approved as foster carers 22. Approval can be granted in an emergency 23. If court proceedings are started, before a court is able to make a final placement order (under which a child may be placed for adoption) it must be satisfied that all other realistic options for long term care for the child have been considered 24. This means that children s services must present evidence of their investigation and assessment of any family and friends carers when they make their application to the court (or very soon afterwards) Requirements and expectations of the statutory guidance on family and friends care The statutory guidance specifically addresses how local authority family and friends care policies should be produced, and what they should cover local authorities should ensure that the policy is developed in the following way: It should promote permanence for children by enabling those who cannot live with their parents to remain with members of their extended family or friends, where this is a better alternative to growing up in the care of the local authority. 26 It should be underpinned by the principle that support should be based on the needs of the child rather than merely their legal status 27 (our emphasis). It should be clearly expressed, regularly updated and made freely and widely available with publicity, via websites and leaflets. 28 Local authorities must consult children and young people, family and friends carers and parents when drawing up their policies 29 (our emphasis). There should be a senior manager who holds overall responsibility for the family and friends care policy. 30 The policy should be evidence based, drawing upon information about the number of family and friends foster carers and the special guardians and adopters the local authority is supporting. 31 Local authority staff should understand the policy and operate within its framework so that it is applied in a consistent and fair manner across the authority 32 (our emphasis). 22 Section 22C Children Act 1989 (as amended) 23 Regulation 24 Care Planning Placement and Case Review Regulations Re B [A Child] [2014] EWCA Civ 565; Re B-S (Children) [2013] EWCA Civ Court procedure says that the local authority must have all their assessments done by at the latest, day 18 of the court proceedings Practice Direction 36B FPR DfE (2011) Ibid, para DfE (2011) Ibid para DfE (2011) Ibid, para DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011)Ibid, para

13 Staff who are responsible for working with family and friends carers and are implementing the policy should have the appropriate training and understanding of the issues which family and friends carers face Contents of the Policy: The statutory guidance also states that the local policy should include the following: Legal framework this includes: An explanation of the authority s powers and duties in relation to children in need and looked after children; The meaning and implications of different legal arrangements for family and friends care; The rights of carers and of the children s parents when children are in family and friends care; The kind of decisions which family and friends carers will be able to make about the child depending on the legal arrangement; and The effect of a residence order, special guardianship order or adoption order. This must be in a format which is accessible to family and friends carers and parents. The purpose is to ensure that members of the public have the necessary information to make informed choices about the options open to them Easily accessible, local information for carers about: How to access targeted and specialist services which may be required, such as special educational needs services and CAMHS; 34 Where to get independent advice; 35 The respective implications of court orders which give them parental responsibility, so that they fully understand the implications of applying for such an order ; 36 Their entitlement to any state benefits and allowances, such as child benefit and child tax credit and where they can go for information and advice, such as benefits advice services. These agencies should also be made aware of the particular difficulties which many family and friends carers face so that they provide a responsive service; 37 Local contact centres and family mediation services to help them resolve any contact difficulties which may arise, although where there are safeguarding 32 DfE (2011) Ibid, para DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011) Ibid para

14 concerns children s services may need to be involved to support safe contact arrangements Financial help 39 : Policies should: Acknowledge that family and friends carers who are struggling to cope financially may need financial assistance for one-off expenditure, such as school clothing or bedroom furniture, or on a more regular basis either to enable them to make adjustments or to make it possible to continue to care for a child in the longer term; Ensure family and friends carers are included in the eligibility criteria for payments under s.17(6) 40, and that they are made aware of this fact and when means testing applies and how they can apply for these payments; and Ensure that when financial support is offered, a written agreement is drawn up 41 setting out the level and duration of the support that is to be provided, and the mechanism for review so that everyone involved is clear about the arrangements Housing: Carers who need it should receive support with accommodation which can also come out of the s.17(6) budget 42 unless the child is looked after, and the guidance also states that whenever possible family and friends carers living in social housing should be given appropriate priority to move to more suitable accommodation if this will prevent the need for a child to become looked after Family Group Conferences: Local policies should also set out the arrangements for holding a family group conference as a way of identifying family and friends carers for a child Support Groups: Local authorities should work with partner agencies and the voluntary sector to find ways to encourage peer support and access to support groups DfE (2011) Ibid para DfE (2011) Ibid paras DfE (2011) Ibid para 3.7. Note also that s.17(6) Children Act 1989 was amended by the Children and Young Person s Act 2008 to remove the qualification that s.17(6) payments could be made in exceptional circumstances only. Thus payments under this section can now be made routinely. 41 DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011) Ibid para DfE (2011) Ibid para

15 S.20 Accommodation (i.e. where children are looked after voluntarily, and not by a court order): Local policies should include information about the local authority s powers and duties including when a child may be accommodated or when care proceedings may be instigated, and how and by whom such decisions are made Family and friends foster care: Family and friends foster carers should be fully supported to care for children placed with them, including receiving training and tailored support and should not be disadvantaged because they had a prior relationship with the child. This includes being paid a fostering allowance which should be at least the minimum set annually by the Department for Education and this should be calculated for family and friends foster carers on the same basis as for all other foster carers. 47 Any variations should relate to the child s needs, the skills of the carer or some other relevant factor that is used as a criterion for all other foster carers. 48 The guidance does not specifically mention the payment of legal fees to help family and friends carers get advice about, and apply for, a relevant court order (for example a child arrangements order saying where the child should live or a special guardianship order) to secure the arrangement for the child to live in their care. However the local authority has a discretionary power to pay legal fees in special guardianship which is not means tested. Local authorities can and some do fund applications for child arrangements orders. 46 DfE (2011) Ibid para This is consistent with case law which requires that local authorities pay family and friends foster carers at the same rate as unrelated foster carers including the fees element of the allowance see The Queen on the Application of L and others v- Manchester City Council; The Queen on the Application of R and another v- Manchester City Council [2002] 1 FLR 43] & R (on the application of X) v London Borough of Tower Hamlets [2013] EWHC 480 (Admin) 48 DfE (2011) Ibid para

16 2.4 Legal options for family and friends care arrangements The key legal statuses 49 include: Private arrangements whereby children are living with family and friends carers as a result of a private arrangement between the parents and the carer. This can include private fostering; Private law orders - children live with relatives or friends under a child arrangements order or special guardianship order; or In local authority care - children are looked after by the local authority (whether under a care order or in voluntary accommodation) and placed with relatives or friends who are approved as local authority foster carers on a short or long term basis. Appendix A sets out the legal framework for decision making and support in more detail. 49 Carers could also be testamentary guardians if they were appointed by the parents/special guardians in writing (often but not always in a will) to raise their child after they die, the parents have now died and the appointment has taken effect (s.5 Children Act 1989); or they could also have adopted the child. In both cases they have parental responsibility, giving them the right to make decisions about how the child is raised and the child will not be looked after by the local authority unless this has occurred subsequently. However, since these statuses occur relatively rarely in family and friends care, we have not included the detailed legal provisions which would apply but further information about this could be obtained from Family Rights Group free confidential advice service on open pm Mon-Fri or read our advice resources 15

17 Chapter 3 Family and friends care policies current state of play Table 3-1 Does the local authority have a published family and friends care policy? Analysis of all local authorities by region Does local authority have a published policy? Yes No % with policy Feb 2015 %with policy in 2012 North East % 62% North West % 32% Yorks & Humber % 40% East Midlands % 56% West Midlands % 43% East of England % 64% London % 61% South East % 79% South West % 63% Total % 55% We found that 126 local authorities have published friends and family care policies. This is 83% of local authorities and represents a significant improvement since our initial report in However, it is unacceptable that four years after the publication of the statutory guidance, 26 local authorities have still not complied with the guidance by publishing a policy on family and friends care. The lowest performing region is London, with only 70% of authorities having published policies. This is particularly worrying as we know that the prevalence of friends and family care is high in London. 50 Of the 26 authorities without a published policy, 4 had a policy in draft form, 10 had a published policy which was exclusively about connected persons foster care and did not cover the 95% of children in family and friends care being raised under other legal options, and 12 had no published policy at all. Even amongst the 126 published policies, we found that 7 were primarily about connected persons foster care, with very little focus on services to other categories of friends and family carers. As the purpose of requiring all local authorities to publish a policy is to ensure that information about local services and policies is readily available to all those who need it, the accessibility of the policy is key. We found that the policies are not 50 Nandy, Selwyn, Farmer and Vaisey (2011) Spotlight on Kinship Care: Using Census microdata to examine the extent and nature of kinship care in the UK at the turn of the Twentieth century (University of Bristol) 16

18 always appropriately named. For example, some local authorities use the term connected persons policy even when the policy referred to all family and friends carers. This is confusing to practitioners and not meaningful to the majority of family and friends carers, who are not approved foster carers but are caring for children in informal arrangements or through special guardianship or child arrangement orders. Using the title Family and Friends Care Policy is consistent with the term used in the statutory guidance and would enable the policy to be found more easily via a website search. In order to check which authorities have a published policy, see Family Rights Group website This list will continue to be kept up to date. 17

19 Chapter 4 Local family and friends care policies: analysis 4.1 Policies selected for analysis In the previous 2012 study, detailed analysis was undertaken of 52 local authorities. In this follow-up study we analysed 53 policies. The sample included 9 local authorities identified in the previous survey as being exemplars, or having some areas of good practice. The remaining 44 were selected to give a cross section of regions, urban and rural authorities, large counties and smaller unitary authorities. The number of authorities included represented approximately one third of the total for each region. Table 4-1: Policies analysed by region Policies analysed by region North East 4 North West 7 Yorks & Humber 6 East Midlands 4 West Midlands 5 East of England 4 London 12 South East 6 South West 5 Total Consultation and needs assessment The Family and Friends Care Statutory Guidance states that the local policy should be supported by good demographic and needs data, developed in collaboration with local partners and that local authorities must consult children and young people, family and friends carers and parents as appropriate in drawing up their policies, and set out how policies have been informed by their views. 51 Policies should reflect the needs of friends and family carers in the local area. 51 DfE (2011) ibid paragraph

20 Table 4-2: Is the policy supported by good demographic and needs data? Does the policy state whether it is supported by good demographic and needs data? Frequency % in 2015 % in 2012 Yes 8 15% 13% Partly 6 11% 12% No 39 74% 75% Total % 100% Table 4-3: Is the policy produced in collaboration with local partners? The policy is supposed to be produced in collaboration with local partners. Does it specify whether this has happened? Frequency % in 2015 % in 2012 Yes 7 13% 13% Partly % 13% No % 73% Total % 100% Table 4-4: Is the evidence based upon consultation with children, carers or parents? Does the evidence base Frequency % in 2015 for the policy include consultation with children, carers and parents? Yes % Partly 5 9.5% No 34 64% Total % Tables 4-2 to 4-4 show that the situation has changed very little, if at all, since the last report, when few local authorities were using local information to inform their policy. Three quarters of the policies were not informed by local demographic and needs data; even fewer authorities stated that the policies had been produced in collaboration with local partner agencies. Two thirds of authorities did not undertake 19